Florida Probate with No Will
Two Major Misconceptions
- There is a common misconception that if you have a Last Will and Testament, then you don't have to go through probate for the estate.
- There is also a misconception that if there is no Will, then you cannot probate an estate.
Both of these misconceptions are false. Probate is NOT determined by whether or not a Last Will and Testament exists.
During case analysis, we look to the assets of the estate and how they are titled or held. If the assets are "stuck" in the name of the decedent, then 9 times out of 10, probate is required to release the assets and transfer them on to the heirs of the estate.
How do you Probate an Estate Without a Will?
When a person dies without a Last Will and Testament, they are deemed to have died "intestate". In many respects, the probate process is similar with or without a Will. However, one must make a critical analysis of who the rightful heirs will be pursuant to state law regarding intestate succession.
When there is no Will, you must consider ALL heirs of the decedent, including those who died before the decedent. This can get complicated in large families. Even small families may face problems if the decedent was survived by multiple generations of heirs.
Florida Statute 732.103 lays out which heirs are entitled to inherit (other than the spouse):
732.103 Share of other heirs.
—The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:
(1) To the descendants of the decedent.
(2) If there is no descendant, to the decedent’s father and mother equally, or to the survivor of them.
(3) If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:
(a) To the grandfather and grandmother equally, or to the survivor of them.
(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
(6) If none of the foregoing, and if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.
As you can see, if one or more of the decedent's heirs have already died, you may encounter a bit of a wormhole trying to pin down all of the rightful surviving heirs.
That said, we frequently handle Florida probate administration for intestate estates and most of them move forward without complication.
See also: 5 Common Myths about Florida Probate
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